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Casterlow-Bey v. Garcia

United States District Court, W.D. Washington, Tacoma

March 6, 2018

GARY CASTERLOW-BEY, Plaintiff,
v.
TIFFANY GARCIA ET. AL., Defendants.

          REPORT AND RECOMMENDATION DENYING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS

          Theresa L. Fricke, United States Magistrate Judge

         This case has been referred to Magistrate Judge Theresa L. Fricke pursuant to 28 U.S.C. § 636(b)(1) and Local Rule MJR 3 and 4. This matter comes before the Court on plaintiff's filing of an application to proceed in forma pauperis. Because plaintiff has incurred at least three strikes and cannot show he is under imminent danger of serious physical injury, he may not proceed in forma pauperis.

         BACKGROUND

         Plaintiff, at the time he commenced the instant action, was incarcerated at Pierce County Jail. Plaintiff submitted a proposed 42 U.S.C. § 1983 complaint, Dkt. 1, to the Court on October 19, 2017. The Clerk notified plaintiff by letter of deficiencies in his submission, including that the filing fee requirement must be met and that plaintiff must either pay the $400.00 filing fee or file a proper application for in forma pauperis (IFP) status. Dkt. 2. On November 1, 2017, plaintiff filed a pro se Motion for Leave to Proceed In Forma Pauperis (Dkt. 5). However, the November 1, 2017, IFP application lists entirely different defendants (Amazon, Google, Barns and Nobles, Ebay, Trafford Publishing, Stoel Rives, LLP) and claims (civil conspiracy and civil racketeering) than are identified in the proposed complaint. Compare Dkt. 5 with Dkt. 1. The Court concludes that plaintiff mistakenly filed the IFP application for a different case under this case number. On November 8, 2017, plaintiff filed another Motion for Leave to Proceed In Forma Pauperis (Dkt. 6), which lists at least some of the same defendants (Tiffany Garcia) and the same claims (dental issue and Eighth Amendment violation) as are listed in the proposed complaint. The November 1, 2017, IFP application (Dkt. 5) should be stricken as it does not relate to the instant action but appears to have been intended for a different case entirely and mistakenly filed under the case number for this action. As such, the IFP application filed on November 8, 2017, is the only proper and valid IFP application pending before the Court.[1]

         In his proposed complaint, plaintiff alleges defendants are failing to provide plaintiff with necessary care by refusing to provide him with replacement dentures, and as a result he has experienced painful gums and lost weight. Dkt. 1. Plaintiff alleges defendants' behavior violated his Eighth Amendment rights. Id.

         DISCUSSION

         The Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915, governs IFP proceedings. Under § 1915(a), a district court may waive the filing fee for civil complaints by granting IFP status to individuals unable to afford the fee. Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). “To address concerns that prisoners proceeding IFP were burdening the federal courts with frivolous lawsuits, the PLRA altered the IFP provisions for prisoners in an effort to discourage such suits.” Id. (citing Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3rd Cir. 2001) (en banc)). Indigent prisoners still receive IFP status if they meet the requirements, but § 1915(b) states prisoners proceeding IFP must pay the filing fee when funds become available in their prison accounts. 28 U.S.C. § 1915(b); Cervantes, 493 F.3d at 1051. “Additionally, prisoners who have repeatedly brought unsuccessful suits may entirely be barred from IFP status under the three-strikes rule.” Cervantes, 493 F.3d at 1051-52. The “three-strikes rule, ” contained in §1915(g), states:

[i]n no event shall a prisoner bring a civil action under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

         The Court notes the PLRA's strike provision does not distinguish between dismissals with prejudice, dismissals without prejudice, actions dismissed on the merits, or actions dismissed pursuant to the PLRA's screening provisions. O'Neal v. Price, 531 F.3d 1146, 1154-55 (9th Cir. 2008). When an application is rejected pursuant to the screening provisions of 28 U.S.C. § 1915 and the case is dismissed, the dismissal counts as a strike. Id. at 1155.

         I. Strikes Under 28 U.S.C. 1915(g)

         A review of court records from this District shows at least three of the cases plaintiff filed while incarcerated were dismissed for failure to state a claim before the date plaintiff properly filed his motion for IFP in this case (November 8, 2017).

         Plaintiff filed Casterlow-Bey v. Google Internet Search Engine Company, (Case No. 17-5621-RBL) while incarcerated at Pierce County Jail. That case was dismissed by order dated October 23, 2017, for failure to state a claim upon which relief may be granted. See Dkt. 11 in Case No. 17-5621-RBL.

         Plaintiff filed Casterlow-Bey v. Google.com, Inc., (Case No. 17-5764-BHS) while incarcerated at Pierce County Jail. That case was dismissed by order dated October 30, 2017, for failure to state a claim upon which relief may be granted. See Dkt. 7 in Case No. 17-5764-BHS.

         Plaintiff filed Casterlow-Bey v. National Park Service, (Case No. 17-5711-RBL) while incarcerated at Pierce County Jail. That case was also dismissed by order dated October 30, 2017, for failure to state a claim upon ...


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